The veil of obscurity that cloaked Mary Thompson’s life was lifted on 15 Aug. 1823 when she was charged with murdering her new-born infant. An illiterate young woman, Thompson was a member of a poor, landless family resident in the York (Toronto) area. At the time of her arrest she was single and had been a domestic servant for but a few months. The evidence for Thompson’s trial is scanty, and so a detailed reconstruction of the crime or much insight into her personal life is precluded. Although her case has therefore less inherent interest than that of Angelique Pilotte* in 1817, it is of greater importance because of its impact upon Upper Canadian legal history.

For a time after her arrest Thompson “steadily denied” knowledge of the crime with which she was charged. At length, however, a confession was obtained and she led the authorities to the child’s grave. Her incarceration was noted in Charles Fothergill*’s Weekly Register under the heading “Horrid Murder.” He commented that she had “evinced but little concern” during the investigation. Indicted under a statute of 1624 (21 Jac.I, c.27), she was tried before Chief Justice William Dummer Powell on 17 Oct. 1823. Attorney General John Beverley Robinson* prosecuted; the defence counsel was probably George Ridout*. After considering the testimony of seven witnesses, a petit jury, including John Doel*, found her guilty but recommended mercy. Powell, however, in spite of his obvious sympathy for Thompson, lacked legal cause to refer the case to Lieutenant Governor Sir Peregrine Maitland*. He sentenced her to be hanged on 20 October but he wrote to Maitland’s secretary, Major George Hillier*, offering an opportunity for gubernatorial intervention. For his part, Maitland would not absolve the judge from signifying legal cause for review.

On 18 October Thompson petitioned Maitland for clemency. Unlike Pilotte, she did not plead innocence. She admitted that she had been “fairly and patiently tried with every Opportunity of Defence.” However, she claimed that she had failed to present the “real situation” to the jury. She now declared that her labour had been “unexpected” and that “in the pains and anguish of child-birth . . . her unfortunate Offspring met it’s untimely end, and that it’s death was not the consequence of any premeditated design to conceal her shame, any predisposition to commit a Deed so foul, any felonious violence by the arm of an unnatural Mother.” She appealed to Maitland’s “known clemency” to “save her from that pending death she is so little prepared to meet.” Two days later her father, who had spoken to Powell personally on the night of the conviction, uttered a plea for his “wretched Child . . . so lately the hope of an affectionate parents future happiness, [who] by one false step productive of Shame is doomed to die an ignominious death.” Making no claim for her innocence, he simply urged that “the spirit of holy feeling and charity” be extended to his daughter as it had been to others.

By now Powell had decided to respite the execution because of new information. Under the statute of 1624 three key areas of evidence had to be established: that the pregnancy and birth were concealed, that the child was a bastard, and that it was born alive. After the trial, a “medical Person” had informed him that evidence admitted which had been taken as conclusive proof that the child was born alive had been “for many years disallowed” by English judges. This information threw doubt upon Powell’s ruling in the last area, and by respiting the sentence, he was able to confer with justices William Campbell and D’Arcy Boulton. They agreed that he had erred in accepting the medical evidence as conclusive, but they added that the jury had convicted on the whole body of evidence and thus there were no grounds for overturning the verdict. On 25 October Powell reported their conclusions to Maitland, but he was still personally convinced that “the verdict might have been other wise had the Evidence been stated as hypothetical.” He urged a further respite and royal review. Maitland concurred and directed him to prepare a report on the case to be forwarded to Colonial Secretary Lord Bathurst.

On 28 November the report was ready. In it Powell reviewed the statute and outlined the evidence bearing upon the verdict. He expressed the view that a major weakness in the crown case had been the failure to produce conclusive evidence consistent with English judicial precedents that the child was born alive. During the trial Powell had admitted the evidence of “two medical witnesses” who had immersed the child’s lungs in water “and found them to float.” At the time he had believed that there was “no question” but that the child was born alive and the compelling and gruesome circumstantial evidence of “a fracture of the skull, braine and extravagate blood,” which the defendant had attributed to her falling with the baby while “crossing astride, a rail fence,” had convinced both judge and jury of the prisoner’s guilt. In his report, however, Powell indicated that English judges now regarded such evidence as either inadmissible or hypothetical, and that it was a principle of English law to require tangible and positive proof and to “admit no Inference from Circumstances.” He also noted the disparity between the reformed English statute of 1803, which had reduced concealment to a misdemeanour, and the unreformed Canadian law.

On 30 July 1824 Powell granted his last respite. Finally, on 6 August, “in consideration of some favorable circumstances,” Thompson was granted an unconditional pardon. Her name appears, for the last time, on the jail return of 30 Sept. 1824. After her release she returned to the obscurity from which she had come. But her disappearance from official notice in no way detracted from the parliamentary and legal ramifications of her case.

The most striking effect of Thompson’s case was the nine years of parliamentary effort to repeal the unusual act by which she had been convicted. Interestingly, the initiative came from, and was sustained by, some of the most powerful political figures in the province: John Strachan*, John Beverley Robinson, George Herchmer Markland*, and Jonas Jones*. The difficult and chequered course of their efforts began shortly after Thompson’s trial when, on 27 Nov. 1823, Markland gave notice in the Legislative Council of a repeal bill. It passed quickly through the council, but died in a House of Assembly committee. In 1825 the bill reappeared as part of Robinson’s wider attempt at reform of criminal law; it was introduced in council by Strachan and steered through the assembly by Jones and Robinson. However, it was disallowed by the imperial government in 1827 for reasons which are not clear. For the next few years no action was taken but the bill was not forgotten. In 1830 Robinson introduced it in the council, but it died on the assembly’s order paper. Finally, the next year, again on Robinson’s initiative, it was passed by the assembly and council and received royal assent. The act, 2 Wm.IV, c.1, voided the authority of the old act because of “doubts . . . respecting the true meaning” and specified that trials for the murder of bastard children were to proceed like other murder trials. Concealment was reduced to a misdemeanour punishable by a maximum prison term of two years. Juries were empowered upon acquittal of child murder to find concealment and the court would then sentence on that ground.

Judicial handling of the Thompson and Pilotte cases suggests, as the court records bear out, that cases of infanticide rarely reached the court. On 18 Aug. 1825 Fothergill commented on yet another young servant “who, after repeatedly denying her state of pregnancy, was privately delivered of a fine male child, which was discovered in a Privy, on the following morning.” In this instance the woman escaped custody and fled. Fothergill feared that it was “not an uncommon offence” and noted that it was usually restricted to the “lower classes.” Harsh winters and periods of economic distress, to say nothing of the shame of having a child out of wedlock, contributed to the incidence of infanticide.

Dead babies, whether found in shallow graves, privies, or under the ice of a frozen bay, were, and are, grim reminders of a brutal side of Upper Canadian life. So disturbing and contemptible a crime as infanticide elicited pity for, rather than outrage against, its perpetrators. In Mary Thompson’s case, however, it was not her pathetic circumstances which occasioned the intermittent efforts of some of the most powerful men in the province, especially Robinson, to repeal the statute. It was rather the determination, in spite of uncooperative assemblies, indifference, and imperial disallowance, to rid the law of an act unusual in its presumption of guilt and difficult to enforce because of doubts as to its true meaning.

[A thorough search of land records – deeds, petitions, and grants – quarter session records, wills, lists of inhabitants, and relevant secondary sources has failed to yield any information about Mary Thompson or her family. There were several Alexander Thompsons (Thomsons) in the York area at this time; none, however, seems to be Mary’s father. r.l.f.]

We acknowledge the support of the Government of Canada through the Department of Canadian Heritage. Nous reconnaissons l’appui du gouvernement du Canada par l’entremise du ministère du Patrimoine canadien.